EPA finds 75 water 'deviations,' sends letter to Wisconsin DNR

State asked to adopt scores of pollution and permit changes or justify existing laws

The U.S. Environmental Protection Agency has pinpointed numerous deficiencies in Wisconsin's management of water pollution and has directed the state Department of Natural Resources to fix the problems in the next two years.

A July 18 letter from the EPA's regional administrator in Chicago detailed 75 "apparent omissions and deviations" from federal law in the state's water permit program.

The program began in 1974 when Wisconsin became the sixth state in the country to administer its own pollution permits under the federal Clean Water Act, a law designed to limit pollution from factories, wastewater treatment plants, construction sites and other sources.

The EPA's list of deficiencies ranged from long-standing state practices to measures advanced this year by Gov. Scott Walker and the Republican-controlled Legislature.

In an email response Tuesday, the EPA noted several areas in which Wisconsin's standards for public participation to comment on pollution permits are stricter than the federal government's.

In one instance, the EPA noted that Wisconsin requires the state to hold a public hearing on pollution permits if five or more parties ask for such a hearing.

The EPA also said current state regulations may prevent communities from limiting overflows of sanitary sewers and the state from limiting pollutants discharged by a factory or other permit holder.

The EPA's action directed the DNR to adopt scores of changes - or explain why Wisconsin law is sufficient.

Susan Hedman, EPA regional administrator, also asked the Wisconsin Justice Department to spell out whether Wisconsin has adequate legal authority to enforce some water regulations in light of a 2010 state Supreme Court decision involving a dispute over a water permit that the DNR issued to a Georgia-Pacific tissue plant in Green Bay.

The case could be interpreted as limiting some authority of the DNR.

Wisconsin authorities said Tuesday they are reviewing the EPA's letter, and in some cases they have been drafting regulations to comply with the EPA.

But if the EPA objects to the DNR recommendations, the federal government could take over the program or exert greater federal oversight, state officials acknowledged.

Attorney Dennis M. Grzezinski of Midwest Environmental Advocates, which represented a Green Bay environmental group in the Georgia-Pacific case, found the EPA's laundry list of concerns troubling.

"The fact they found 75 problems ought to be amazingly alarming," Grzezinski said. "This is certainly one of the most dramatic statements I have seen from the EPA."

Robin Nyffeler, an attorney with the DNR, said the EPA's letter should be viewed in context:

After more than 40 years of running its own water program, the state is bound to have some regulations that don't jibe with the federal government, Nyffeler said.

"We knew that we needed to make some changes," Nyffeler said. "I think this review is the way the process should work."

The issues have been the subject of discussions between state and federal authorities since 2009 and initially started with more concerns, Nyffeler said.

The EPA said it has been reviewing the state permit program since 2003 and in the Midwest region sent similar messages to Ohio in 2009 and to Indiana earlier this year.

Also, the EPA said in its letter to the DNR:

Language in the newly passed state budget turned over the authority to regulate soil erosion at commercial construction sites from the DNR to a newly reorganized agency, the Department of Safety and Professional Services.

The change was supported by business groups because it would simplify state oversight at building sites to a single agency. But environmental groups opposed the measure because it gave environmental duties to an agency it says is ill-equipped for the task.

Another regulation, passed in May, requires state agencies to impose limits or standards only if a law provides for it. The agency wants the Justice Department to explain how the law would square with federal requirements.